Judge: John J. Kralik, Case: 19BBCV00929, Date: 2022-07-29 Tentative Ruling
Counsel who wish to submit on the tentative ruling may do so by emailing BURDeptB@lacourt.org
PLEASE WRITE THE CASE NUMBER AND PARTY YOU REPRESENT. YOU MAY ONLY SUBMIT ON BEHALF OF THE PARTY YOU REPRESENT. YOU MAY NOT SUBMIT ON BEHALF OF ANOTHER PARTY.Counsel are directed to cc all other counsel if you are submitting on the tentative ruling.
IF YOU HAVE QUESTIONS OR NEED CLARIFICATION ON THE TENTATIVE, YOU MUST APPEAR AND ADDRESS YOUR QUESTIONS TO THE COURT.
IF BOTH SIDES SUBMIT ON THE TENTATIVE RULING, THE TENTATIVE RULING THEN BECOMES THE ORDER OF THE COURT ON THE MOTION DATE AND NO APPEARANCES ARE NECESSARY.
THERE WILL BE NO RESPONSES TO ANY INQUIRIES SUBMITTED THROUGH THIS SITE.
THANK YOU!
Case Number: 19BBCV00929 Hearing Date: July 29, 2022 Dept: NCB
North Central District
woodhill ventures, llc dba
big sugar bakeshop, Plaintiff, v. BEN YANG, Defendant. |
Case No.: 19BBCV00929 Hearing Date: July 29, 2022 [tentative] order RE: motion for Summary adjudication |
BACKGROUND
1.
Allegations
of the Operative Complaint
Plaintiff Woodhill Ventures, LLC dba Big
Sugar Bakeshop (“Plaintiff”) is a small business bakery. Plaintiff alleges that Defendant Ben “Ben
Baller” Yang (“Defendant”) made numerous profane, libelous, and slanderous
comments on social media and his podcast accusing Plaintiff of putting Drugs/RX
prescription pills on his son’s birthday cake.
The operative complaint, filed October 17, 2019,
alleges causes of action for: (1) libel; (2) slander; and (3) unfair business
practices.
2.
Relevant
Background
On February 7, 2020, the Court denied Defendant
Ben Yang’s special motion to strike the complaint pursuant to CCP §425.16.
Defendant appealed.
On September 3, 2021, the Court of Appeal
affirmed and awarded costs to Respondent/Plaintiff. On January 7, 2022, the Court of Appeal
issued its Remittitur.
3.
Motion
on Calendar
On May 11, 2022, Plaintiff filed a motion for
summary adjudication on each of Defendant’s 22 Affirmative Defenses.
On July 18, 2022, Defendant filed an
opposition brief.
On July 22, 2022, Plaintiff filed a reply
brief.
EVIDENTIARY OBJECTIONS
With the reply brief, Plaintiff submitted
evidentiary objections to the declarations of Ben Yang and Nicolette Yang. The Court
rules as follows:
DISCUSSION
A.
Withdrawn Affirmative Defenses
Plaintiff moves for summary adjudication as
to each of Defendant’s 22 affirmative defenses.
In his opposition, Defendant withdraws
Affirmative Defense Nos. 1-6, 8-9, 13-14, 16, 19, and 21-22. (Opp. at p. 13.) Defendant opposes the motion for summary adjudication
and specifically argues that there are triable issues as to the Affirmative
Defense Nos. 15 (Statements of Truth), 12 (Expressions of Opinion), 17 and 20
(Lack of Damages and Speculative Damages), 7 (Preventative/Corrective
Opportunities), and 10 (Superseding Causation).
The Court notes that Defendant does not specifically discuss Nos. 11 (Failure
to State Facts Sufficient for Defamation) or 18 (Materiality) in his opposition
brief.
The Court has placed in bold
the affirmative defenses that are still outstanding and which will be discussed
in this order:
·
1.
Failure to State a Claim
·
2.
Unclean Hands
·
3.
Mitigation of Damages
·
4. In Pari
Dilecto
·
5.
Equitable Estoppel
·
6.
Offset
·
7.
Preventative/Corrective Opportunities
·
8.
Condition Precedent
·
9.
Contributory Negligence
·
10. Superseding
Causation
·
11. Failure
to State Facts Sufficient for Defamation
·
12. Expression
of Opinion
·
13.
Matter of Public Concern
·
14. No Knowledge
of Falsity
·
15. Statements
of Truth
·
16.
Privilege Statements
·
17.
Lack of Damages
·
18.
Materiality
·
19.
Exemplary Damages would be Unconstitutional
·
20. Speculative
Damages
·
21. Good
Faith
·
22. Bona
Fide Error
B.
Discussion
of Merits
Plaintiff
argues that this action arises from Defendant’s allegedly libelous and
slanderous statements regarding Plaintiff’s bakery, Big Sugar Bakeshop. Plaintiff argues that 5 particular statements
were made on Defendant’s Twitter, Instagram, and podcast.[1] The Court has italicized the portions of the
statements that Plaintiff has placed at issue in the complaint.
The Court
discusses the merits of the motion as to the remaining Affirmative Defenses.
1. Affirmative Defense No. 15 – Statements of
Truth
In Affirmative
Defense No. 15, Defendant alleges: “The Complaint and each cause of action alleged against Defendant gives
rise to no viable cause of action against Defendant as the statements were true.” (Answer, ¶18.)
Plaintiff
argues that there were no drugs on the birthday cake when it was delivered to
Defendant’s home. (Pl.’s Fact 17.) According to Defendant’s discovery response
to Plaintiff’s RFA No. 34 (“Admit that
on August 24, 2019, at the time you made the social media posts regarding Big
Sugar Bakeshop, you knew real drugs were not put on your son's birthday cake.”),
Defendant raised objections but ultimately responded, “Admit.” (Mot., Ex. 13 [RFA responses]. Similarly, at his deposition, Defendant testified
that he said that Plaintiff put drugs on the cake, but that there were no
actual drugs or prescription drugs on the cake delivered by Plaintiff and the
pills only looked like Molly. (Mot. Ex.
15 [Def.’s Deposition Testimony at pp. 95, 97-98].) Plaintiff argues that Defendant
then made his 5 offending statements on Twitter and Instagram on August 24,
2019 and on his podcast on August 26, 2019.
(Pl.’s Fact 18-22.) Plaintiff also
argues that the first sign-up email did not state that Defendant’s son was 7
years old. (Pl.’s Fact 23.)
In opposition, Defendant provides his own declaration wherein he
states:
My
initial social media post directly discussing the issue couldn’t have summed up
my point any better that you should never put replica drugs on a child’s
birthday cake, as children could mistake similarly looking “real” prescription
drugs for edible candy, as the post included a side-by-side comparison of the
example we provided, and of the cake we received, stating, “1st pic is the
example. 2nd pic is what they made.” The images clearly show that the second
cake has “REPLICA” drugs that look just like real drugs all over the cake.
There was nothing to hide and nothing to mislead.
(B.
Yang Decl., ¶13.) Following the
declaration statement, he includes a screenshot (Exhibit B) to provide a full
context of the post:
(Id., ¶13 at
p.4.) At the summary adjudication phase,
courts “liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Here, taking Defendant’s statements in
context with the photographs of the requested cake and the cake Defendant
received, Defendant has raised a triable issue of material fact regarding the 1st
statement he made about Plaintiff putting drugs (real or fake) on the
cake.
With respect to the 2nd and 3rd
statements, Defendant argues that his social media posts should be read in
their full context, as opposed to the snippets provided by Plaintiff. For example, in the 2nd statement,
Defendant posted, “Did you want the
kids attending the party to think it’s ok to take pills or maybe make them even
look like candy which is even worse?” (B. Yang Decl., ¶14, Ex. C [bold
added].) In his 3rd statement,
Defendant posted “Where ever in life
would it be okay to put drugs on a 7 year old kids bday cake and have them
think its candy or something?” (Bold added.)
He states that he made his sentiments clear that Plaintiff
placing “replica” pills on a child’s birthday cake is dangerous and that had he
believed they were real, he would have called law enforcement. (Id., ¶14.) At the summary adjudication phase, the Court finds
that these statements and his declaration sufficiently raise a triable issue of
material fact regarding whether Defendant was making statements of fact, as
well as statements of opinion.
Next, as to the 5th statement, Defendant
argues that again he was not making statements that the pills were real, but
rather that the decorations looked like real pills. (Def.’s Fact 14.) For the same reasons above, taking the full
context of the parties’ exchanges, Defendant has raised a triable issue of
material fact at the summary adjudication phase.
Finally, with respect to the 4th statement, the invoice of
the subject cake was billed to Mrs. Yang on August 17, 2019 and included the
following notations:
9”
Chocolate Cake with chocolate ganache filling $75.00
Black
fondant exterior $35.00
Green
ganache drip $25.00
Slime
label $15.00
Fondant
pills $15.00
Numbers/Hexagon
decor $15.00
Placement
fee – for clear plastic cylinder $20.00
…
(Mot.,
Ex. 2.) In the opposing separate statement,
Defendant does not state that Plaintiff’s Fact 23 is disputed or undisputed;
rather, the box is blank. (See Def.’s Sep.
Statement at p.8; Def.’s Fact 23.) In opposition,
Defendant provides the declaration of Nicolette Yang. Mrs. Yang’s inquiry email for the cake, dated
August 11, 2019, she states:
Full
name: nicolette yang
Email:
…
Telephone:
…
Pickup
or Delivery: delivery
Pickup
location: Studio City
Date
and Time of Pickup: August 24th at 1pm
[¶] Event size: 30
Flavor cake and filling:
chocolate ganache
Budget: $200
Theme of event:
Science/Slime
(N. Yang Decl., ¶2, Ex. A.) The Court notes that this email exchange did
not include statements that Defendant’s son was 7 years old at the time. At most, Mrs. Yang states that shortly before
the birthday event, she visited Plaintiff’s store to drop off a cake prop and
made clear that the case was for a 7-year old’s birthday party—but again, this
was not the initial sign-up email. (N.
Yang Decl., ¶7.) Thus, Plaintiff has upheld
its burden and Defendant has failed to raise triable issue of material fact as
to the 4th statement. However,
“A motion for summary adjudication
shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).)
Regardless of whether
the affirmative defense of statement of truth (and/or opinion) is stricken, Plaintiff
would still need to prove falsity of each statement it decides to place in
issue in order to establish that defamation occurred. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369 [stating that
the elements of a defamation claim are (1) publication that is (2) false, (3) defamatory,
(4) unprivileged, and (5) has a natural tendency to injure or cause special
damage].)
For these reasons, the
motion for summary adjudication on Affirmative Defense No. 15 is denied.
2. Affirmative Defense No. 12 – Expression of
Opinion
In Affirmative Defense No. 12, Defendant alleges: “The Complaint does not state facts sufficient
to constitute a cause of action against Defendant in that the statements
alleged to be defamatory are expressions of opinion.” (Answer, ¶15.)
Plaintiffs argue that Defendant’s statements
are assertions of fact and were not opinions because Defendant falsely claimed that
Plaintiff put real drugs on the cake. In
opposition, Defendant argues that “no reasonable reader or listen of Mr. Yang’s
statements would perceive it to be anything other than a figurative, hyperbolic
expression.” (Opp. at p.10.)
Plaintiff relies in part on the Court’s prior ruling
on Defendant’s special motion to strike.
However, according to CCP § 425.16(b)(3): “If the court determines that the plaintiff has
established a probability that he or she will prevail on the claim, neither
that determination nor the fact of that determination shall be admissible in
evidence at any later stage of the case, or in any subsequent action, and no
burden of proof or degree of proof otherwise applicable shall be affected by
that determination in any later stage of the case or in any subsequent
proceeding.” Thus, the Court’s prior
findings on the prior special motion to strike, which included a different
legal standard and evidence, will not be a grounds for granting this motion for
summary adjudication.
Similar to the discussion above regarding Affirmative
Defense No. 15, the Court finds that there are triable issues of material fact
regarding the 1st, 2nd, 3rd, and 5th
statements. While the 4th
statement about the first sign-up email stating that Defendant’s son was 7-years
old at the time is not true or an expression of opinion, the Court will not grant
summary adjudication as to only a part of an affirmative defense.
Accordingly, the motion for summary adjudication on
Affirmative Defense No. 12 is denied.
3. Affirmative Defense Nos. 17 and 20 – Lack of
Damages and Speculative Damages
In Affirmative
Defense No. 17, Defendant alleges: “No act or omission on the part of Defendant either caused or
contributed to whatever injury (if any) the Plaintiff may have sustained.” (Answer, ¶20.) In Affirmative Defense No. 20, Defendant
alleges: “Plaintiff is
not entitled to any recovery from Defendant because the alleged damages, if
any, are speculative.” (Id.,
¶23.)
First, Plaintiff argues that these affirmative
defenses are not applicable because the statements are defamatory per se. In opposition, Defendant argues that
Plaintiff’s complaint fails to make clear whether the claims are for slander
and libel per se or are for slander and libel per quod. However, the complaint alleges that Defendant’s
“statements constitute liber per se” and were “libelous on its face as it was
obviously hurtful to Big Sugar’s reputation and exposed Big Sugar to hatred,
contempt, and ridicule.” (Compl., ¶¶4,
40.) Plaintiff also alleges that the
slanderous statements directly injured Plaintiff’s business as each statement
imputed a business practice that had a natural tendency to lose profits, such
as by putting drugs on a child’s cake. (Id.,
¶46.) Further, as stated by the Court of
Appeal in Burrill v. Nair (2013) 217 Cal.App.4th 357 (disapproved on
other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376):
Where a libelous statement “is defamatory on
its face, it is said to be libelous per se, and actionable without
proof of special damage. But if it is defamation per quod, i.e.,
if the defamatory character is not apparent on its face and requires an
explanation of the surrounding circumstances (the ‘innuendo’) to make its
meaning clear, it is not libelous per se, and is not actionable without
pleading and proof of special damages.” (5 Witkin, Summary of Cal. Law
(10th ed. 2005) Torts, § 541, p. 794; see Civ.Code, § 45a.) Similarly,
certain slanderous statements are considered slanderous per se, and actionable
without proof of special damage. However, the slander statute expressly
limits slander per se to four categories of defamatory statements, “including
statements (1) charging the commission of crime, or (2) tending directly to
injure a plaintiff in respect to the plaintiff's [profession, trade, or]
business by imputing something with reference to the plaintiff's [profession,
trade, or] business that has a natural tendency to lessen its profits.” (Mann,
supra, 120 Cal.App.4th at pp. 106–107, 15 Cal.Rptr.3d 215;
see Civ.Code, § 46.) And while libel per se is not so limited, courts
have held the foregoing categories of defamatory statements to also constitute
libel per se.
(Burill, supra,
217 Cal.App.4th at 382-383.)
Here, the defamatory character of the statements is
apparent on its face and does not require an explanation of the surrounding circumstances
as Defendant’s statements were pointed towards Plaintiff’s business, their cake
decorations, and their use of drugs (or replica drugs) on the subject cake. As such, Plaintiff has sufficiently apprised
Defendant that it is pursuing claims of libel per se and slander per se, as
opposed to libel/slander per quod. As
such, Plaintiff need not plead or prove special damages.
Next,
Defendant argues that these affirmative defenses are proper against Plaintiff’s
3rd cause of action for unfair business competition because while
damages are not available for an unfair competition law claim, Plaintiff may be
pursuing injunctive “restitutionary” relief. (Opp. at pp. 11-12.) Thus, Defendant argues that if Plaintiff is seeking
restitution of money, then Plaintiff would need to prove this cause of action
with actual evidence.
In
the 3rd cause of action for unfair business practices, Plaintiff
alleges that Defendant used unfair business practices to make false statements
to incite his social media followers to harass, threaten, or damage people/entities
to generate a social media buzz for his podcast. (Compl., ¶56.) Plaintiff alleges that it has been harmed in
the form of lost business opportunities, revenues, and profits, and thus it
seeks restitution and attorney’s fees and costs, as well as injunctive
relief. (Id., ¶¶58-59.) In reply, Plaintiff argues that restitution
is not damages, such that actual damages are not a necessary element to a UCL
claim. (See Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [stating that a UCL
action is equitable in nature such that damages cannot be recovered and that
relief is limited to injunctive relief and restitution].)
If Plaintiff
was seeking purely to prevail on its defamation claims and for nominal damages,
then Plaintiff would not need to prove special damages. However, by way of its complaint, Plaintiff
is seeking more than nominal damages – it is seeking damages with respect to
its business, including loss of business, loss of business opportunities/revenues/profits,
money expended due to Defendant’s statements, restitution, and attorney’s fees
and costs. (Compl., ¶¶42, 50, 58-59.) Since Plaintiff is seeking general damages and
restitution, it will need to prove the amount of damages that it suffered. Further, by bringing these defenses, Defendant
is essentially reasserting its right to defend against and question the amount
of damages that Plaintiff is or will be claiming. (The Court notes that even if Affirmative
Defense Nos. 17 and 20 were stricken, Defendant would still have the right to
raises defenses or dispute damages.)
Thus,
while Plaintiff argues that it need not prove special damages in connection
with its defamation per se causes of action, Plaintiff’s motion somewhat misses
the mark as Plaintiff is seeking more than just nominal damages. Defendant’s Affirmative Defenses are not
directed only to the issue of special damages, but rather to the damages that Plaintiff
claims to have sustained as a whole, which includes loss of business, etc. As such, the Court does not find that
Plaintiff has upheld its burden on these issues.
As
such, the motion is granted to Affirmative Defense Nos. 17 and 20.
4. Affirmative Defense Nos. 7, 10, 11, and 18
a. Affirmative Defense No. 7 - Preventative/Corrective
Opportunities
With
respect to Affirmative Defense No. 7 – Preventative/Corrective Opportunities, Plaintiff
argues that this is not an affirmative defense and, even if it were, Plaintiff
had asked Defendant to correct or retract his false statements. (Mot. at p.22.) Plaintiff argues that no material facts are
necessary to adjudicate this issue because it is not an affirmative defense as
a matter of law. (Mot. Sep. Statement at
p.4.) In opposition, Defendant argues
that Plaintiff deviated from Mrs. Yang’s proposed design, had not given the
Yangs the opportunity to approve the deviation, and Plaintiff could have taken
protective measures to avoid Defendant from making public complaints about the cake
by providing the Yangs the proposed designs for approval. (Opp. at p.12.)
The
affirmative defense of “preventative or corrective opportunities” is ordinarily
pleaded in the context of employer-employee action where an employer is subject
to vicarious liability to a victimized employee for an actionable hostile environment
created by a supervisor with authority over the employee. (See Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765; Faragher v. City of
Boca Raton (1998) 524 U.S. 775.)[2] As such, the Court declines to extend this
affirmative defense in the context of this defamation case involving a bakery
and its client regarding the decorations of a cake. The motion for summary adjudication on Affirmative
Defense No. 7 is granted.
b.
Affirmative
Defense No. 10 - Superseding Causation
In Affirmative Defense No. 10, Defendant alleges: “If Plaintiff sustained any injuries or
incurred any damages, which Defendant deny [sic], such alleged injuries and
damages were product of, or were exacerbated by, independent superseding
events, factors, occurrences, or conditions over which Defendant had no control
and for which Defendant is not legally responsible or liable.” (Answer, ¶13.)
Plaintiff
argues that Affirmative Defense No. 10 is not applicable because Defendant’s
statements were defamatory per se, the damages caused are presumed, and thus the
defense does not apply. (Mot. at
p.23.) In opposition, Defendant argues
that the statements were later retweeted and shared by others who failed to
provide the entire context of the full visual statement of Defendant’s original
statement, such that Defendant’s original statements were misconstrued by
others. (Opp. at p.12.)
However,
as indicated above with respect to damages, the issue of independent causes of
damages cannot be fully understood or adjudicated without a full understanding
of the damages that are claimed by Plaintiff. Given the broad description of
the damages in the complaint, there well could be independent causes that
cannot be determined until the damages are specified. The motion contains no
such specification or limitation. For example, if there is a claim for lost
profits during the pandemic, perhaps the pandemic is a cause of some of the
losses that must be evaluated. Thus merely establishing that certain statements
constitute slander per se (see Civil Code, § 46) does not resolve the issue.
The
motion for summary adjudication on Affirmative Defense No. 10 is denied.
c. Affirmative Defense No. 11 - Failure to State
Facts Sufficient for Defamation
Plaintiff
argues that Affirmative Defense Nos. 1 (withdrawn by Defendant) and 11 are not
applicable because “failure to state a claim” is not an affirmative
defense. (Mot. at p.20.) The Court notes that Defendant does not
address this affirmative defense in its opposition, but has already withdrawn Affirmative
Defense No. 1 re Failure to State a Claim.
The failure
to state a claim is not an affirmative defense that must be pled or
waived. (See CCP § 480.80 [stating that
objections on the basis that the court lacks jurisdiction or the pleading does
not state sufficient facts is not waived by failure of the party to answer or
demur on these grounds]; Rutter Guide, Cal. Prac.
Guide Civ. Pro. Before Trial (June 2022 Update) Ch. 6-C, § 6:430 [“In addition to denials, the answer should contain
whatever affirmative defenses or objections to the complaint that defendant may
have, and that would otherwise not be in issue under a simple denial.
Such defenses or objections are referred to as ‘new matter.’”]. See also J & J Sports Productions, Inc. v. Mendoza-Govan (N.D.
Cal., Apr. 25, 2011) 2011 WL 1544886, at *5 [“Failure to
state a claim is not a proper affirmative defense but, rather, asserts a defect
in [the plaintiff's] prima facie case.”].)
As such, the motion for summary adjudication as
to Affirmative Defense No. 11 is granted.
d.
Affirmative
Defense No. 18 – Materiality
In Affirmative Defense No. 18, Defendant alleges: “Plaintiff is not entitled to any recovery from
Defendant because any alleged false or misleading statements or omissions attributable
to Defendant, which Defendant denies, were not material.” (Answer, ¶21.)
Plaintiff argues that this affirmative defense
fails because Defendant’s statements that Plaintiff put drugs on his son’s
birthday cake are material and are defamatory per se. (Di Giorgio
Fruit Corp. v. American Federation of Labor and Congress of Indus.
Organizations (1963) 215 Cal.App.2d 560, 571 [“[W]hen a corporation
… charges that a publication respecting it is libelous per se, it is essential
that it should reasonably and naturally appear from the publication complained
of that it was of such a nature as to deprive [it] of the patronage or trade it
enjoyed in a business way, or to render it so odious and contemptible in the
estimation of those with whom it did have or might reasonably expect to have
business dealings or connections as to injuriously affect its business. ...”].)
The Court notes that Defendant has not discussed
the materiality affirmative defense in his opposition brief. It should further be noted that Defendant has
not disputed Plaintiff’s Fact Nos. 44-48 regarding this defense. (See Pl.’s Facts 44-48; Def.’s SS at p.14
[skipping Facts 44-63].) As such, it
appears that Defendant is conceding that this affirmative defense fails. (CCP § 437c(b)(3) [“Failure to comply with this requirement of a
separate statement may constitute a sufficient ground, in the court's
discretion, for granting the motion.”].)
Thus, the motion for summary adjudication as to
Affirmative Defense No. 18 is granted.
CONCLUSION AND ORDER
Plaintiff’s
motion for summary adjudication as to Defendant’s Affirmative Defense Nos. 1-6,
8-9, 13-14, 16, 19, and 21-22 is granted as Defendant’s opposition states that
he is withdrawing these affirmative defenses.
Plaintiff’s motion for
summary adjudication as to Defendant’s Affirmative Defense Nos. 7, 11, 17, 18,
and 20 is granted.
Plaintiff’s motion for summary adjudication as to
Defendant’s Affirmative Defense Nos. 10, 12, and 15 is denied.
Plaintiff shall provide
notice of this order.
[1]
In the complaint, Plaintiff alleged there were 9 statements at issue, but in
the moving papers, Plaintiff states that if it prevails on this motion, it will
only pursue slander and libel claims as to these 5 statements at issue in this
motion, and not the remaining 4 statements that were made in paragraphs 37(d),
37(e), 33(d)/45(b), and 33(b)/45(c) in the complaint. (Mot. at p.10, fn.1.)
[2] The Court of Appeal in Comstock v. Aber (2012) 212 Cal.App.4th 931,
944 stated: “The defense is that set forth in Faragher
v. City of Boca Raton (1998) 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d
662, which held that in an action by an employee, the employer can assert as
an affirmative defense that the employee unreasonably failed to
take advantage of preventative or corrective opportunities provided
by the employer.”
Based on the Court’s review of the case law, the
context of applying this affirmative defense is in the employer-employee
setting. (See State
Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1038–1039 [FEHA action] [“When no tangible employment action is taken, a
defending employer may raise an affirmative defense to liability or damages, subject to proof by a
preponderance of the evidence.... The defense comprises two
necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.”] [citing Burlington Industries, Inc. v. Ellerth (1998) 524
U.S. 742]; City of Petaluma v. Superior Court (2016)
248 Cal.App.4th 1023, 1030 [FEHA action].)